ACIT, Dehradun V. Hyundai Heavy Ind. Co. Ltd., Mumbai

MA 561/DEL/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6589 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 1995-1996
• Appeal Filed On: 14-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH C NEW DELHI) BEFORE R.P. TOLANI, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER M.A. NO. 560 & 561/DEL/2010 IN I.T.A. NO.2290 & 2291 /DEL/2010 ASSESSMENT YEAR : 1994-95 & 1995-96 DCIT, M/S HUNDAI HEAVY INDUSTRIES CIRCLE-1, CO. LTD., MUMBAI DEHRADUN. V. (APPELLANT) (RESPONDENT) APPELLANT BY : MS. Y. KAKKAR, SR. DR. RESPONDENT BY : SHRI SANJIV SAPRA, ADVOCATE. ORDER PER A.K. GARODIA, AM: THESE TWO MISC. APPLICATIONS ARE FILED BY THE REVENUE POINTING OUT CERTAIN MISTAKES IN THE COMBINED TRIBUNAL ORDER DATED 9.10.2009 FOR ASSESSMENT YEAR 1994-95 & 1995-96. 2. IT IS THE COMMON CONTENTION OF THE REVENUE IN BOT H THE YEARS THAT THERE ARE FOLLOWING MISTAKES IN THIS COMBINED TRIBUNAL ORDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, HON'BLE ITA T ERRED TO TAKE INTO CONSIDERATION THAT PE OF THE ASSESSEE EXISTE D ON THE DATE OF SIGNING OF CONTRACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, HON' BLE ITAT ERRED IN NOT CONSIDERING THAT THE CONTRACT WAS TURNK EY CONTRACT PAGE 2 OF 4 MA NO560 & 561../DEL/2010 INVOLVING CONSTRUCTION OF PLATFORM IN INDIA AND NOT MERELY A SUPPLY CONTRACT. THE INSURANCE OF THE CONTRACT CONTIN UES TO BE THE LIABILITY OF CONTRACT TILL PROJECT WAS HANDED OV ER TO ONGC IN INDIA. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, HON'BLE ITA T ERRED IN NOT CONSIDERING THAT THE PHYSICAL & LEGAL CONTROL OF THE PROJECT WAS PASSED TO ONGC IN INDIA AND HENCE THE CONTRACT SHO ULD HAVE BEEN TREATED TO BE COMPLETED IN INDIA. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, HON'BLE ITA T ERRED IN DIFFERENTIATING REVENUES INSIDE INDIA AND OUTSIDE INDI AL. ALL REVENUES WERE INSIDE INDIA REVENUES AND SHOULD HAVE BE EN BROUGHT TO TAX IN INDIA ONLY. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, HON'BLE ITA T ERRED TO TAKE INTO CONSIDERATION THAT THE FACTS OF THE CASE BEFORE HON'BLE ITAT WERE DIFFERENT FROM THE CASE BEFORE HON 'BLE SUPREME COURT 291 ITR 482 WHICH HAS BEEN RELIED UPON BY HON'BLE ITAT. 3. IN THE COURSE OF HEARING BEFORE US, LD DR OF THE R EVENUE REITERATED THE SAME ARGUMENTS WHICH ARE CONTAINED IN THESE TWO MISC. APPLICATIONS, AS REPRODUCED ABOVE. AS AGAINST THIS, IT IS SUBMITTED BY LD AR OF THE ASSESSEE THAT THERE IS NO APPARENT MISTAKE I N THIS COMBINED TRIBUNAL ORDER WHICH MAY BE RECTIFIED U/S 2 54 (2) OF THE ACT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE GO NE THROUGH THE CONTENTS OF THESE TWO MISC. APPLICATIONS AN D THE IMPUGNED TRIBUNAL ORDER. IN OUR CONSIDERED OPINION, THERE IS NO APPARENT MISTAKE IN THIS TRIBUNAL ORDER WHICH REQUIRES ANY RECTIFICATI ON U/S 254(2) OF THE ACT. THE CONTENTION OF THE REVENUE RAISED IN THESE T WO MISC. APPLICATIONS AMOUNT TO REVIEW OF THE TRIBUNAL ORDER WHICH IS NOT PAGE 3 OF 4 MA NO560 & 561../DEL/2010 PERMISSIBLE U/S 254(2) AND HENCE BOTH THESE MISC. APPLIC ATIONS OF THE REVENUE ARE LIABLE TO BE REJECTED. WE, ORDER ACCORD INGLY. 5. IN THE RESULT, BOTH THESE MISC. APPLICATIONS FILED BY THE REVENUE ARE DISMISSED. 6. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE O F HEARING I.E. 3 RD JUNE, 2011. SD/- SD/- (R.P. TOLANI) (A.K. GAR ODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 03.6.2011. HMS COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). DATE OF HEARING DATE OF DICTATION DATE OF ORDER SIGNED BY THE HON'BLE MEMBER. DATE OF ORDER SENT TO THE PAGE 4 OF 4 MA NO560 & 561../DEL/2010 CONCERNED BENCH